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TERMS OF SERVICE
These Terms of Service (“TOS” or “Agreement”) constitute an agreement by and between you and your law firm or other organization (as identified by you during the sign-up process, acting jointly, (“USER” or “you”) on the one hand, and Gallo Digital, LLC and its affiliates (hereinafter “LEVERAGE,” “we,” “our,” or “us,” etc.).
Leverage is client intake and management software for attorneys, provided as a service, hosted “in the cloud,” designed to increase the speed and efficiency of communicating with large numbers of clients, and performing substantially as demonstrated to you (the “System”). The System will be as shown to you subject to updates, improvements, and changes from time to time.
1. Services. Conditioned on your timely payment of the amounts due in compliance with this TOS, we will provide you with use of the System.
2. Pricing, Payment, and Disputes. You will pay our market rates for the System as they exist from time to time, or such other rates as are specifically agreed between you and us in a writing signed by us. To the extent the price for the System is not paid within 20 days of the invoice date, beginning on the next monthly invoice date, the price will increase at the rate of 1.5% per month from the original invoice date, with the total cumulating amount due compounded monthly at that rate. This time-price escalator is not interest or a penalty, but increases the price for the System based on the timing of payment. If you dispute or question the propriety of any charge you agree to advise us in writing within 20 days of the invoice date so that we can timely respond. If you do not do so, you hereby agree that the bill is an accurate statement of your account, an accurate description of the services you requested or wished us to render, an accurate statement of the services we provided to you or for your benefit, and as substantiating the propriety and reasonableness of all charges reflected on the bill.
3. Training. Training is not included but is available at our customary rates as they exist from time to time. Training will be conducted live in our offices or via the web. You may include as many participants in these sessions as desired. We recommend (1) exposing as many users as possible to LEVERAGE during training, and (2) that training time be used to ensure a deep proficiency with the program for at least a few of USER’s personnel. While senior attorneys may typically leave mastering technology to junior lawyers and staff, Leverage is reasonably intuitive, and not difficult to learn to use. A significant benefit of Leverage is the extent to which is enables the trial lawyer him or herself to communicate directly and easily with his or her clients, even though they may number in the thousands. So, we recommend including the lead trial lawyer.
4. Engineering, Support, Additional Training, and Consulting. Additional services are not included but may be provided upon the agreement of the parties at our customary rates as they exist from time to time.
5. No technical support for end-users (your clients). Our services provided hereunder do not include providing technical support for your clients. While Leverage is designed to work on most devices and browsers, including smartphones and tablets, end-users may have challenges using Leverage, most often arising from the use of old devices or web browsers, or failure to follow instructions or conventions. You may choose to provide the level of support for end-users you wish. Leverage will provide you (not end-users) with answers to questions regarding the use and functionality of Leverage at our customary rates as they exist from time to time.
6. Data Privacy. Leverage does not sell, license, use, or share your confidential information with any third parties. We do not use it except to offer and provide services.
7. Term and Termination. Upon your failure to timely pay the charges due hereunder we will have (a) the right but not the obligation to suspend performance upon five business days’ notice to USER, and (b) the right but not the obligation to terminate this Agreement upon 30 days’ notice. You may terminate this agreement at any time. Upon termination, your Leverage instance will be deactivated. All rights to payment or damages, and all provisions protecting the intellectual property of the parties against any transfer resulting from this Agreement or its performance, confidentiality, indemnity, or other rights to defense and indemnity, and all other similar rights shall survive the termination of this Agreement.
8. Warranties, Intellectual Property Claims, and Limitations of Liability
8.1. Licensure. You represent that you and all attorneys using the service are duly and legally licensed and authorized to practice law in the jurisdictions appropriate to the engagements you undertake for clients through the System.
8.2. Our Intellectual Property Representations. We have full and exclusive power and authority to enter into and perform this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary legal action and this Agreement constitutes our legal, valid, and binding obligation. Except as otherwise stated in this Agreement, no other person has or will have any right, title or interest in or to LEVERAGE that would materially curtail, impair, diminish or derogate from our ability to provide the System. We have not done or permitted to be done and will not do or authorize or permit to be done any act or thing that is or may be in any way inconsistent with or would materially curtail, impair, diminish or derogate from our ability to provide the System. Notwithstanding the foregoing, you understand and agree that Leverage, like any modern software as a service application, depends on certain technologies and services provided by others.
8.2.1. Defense and Indemnity. On the condition that USER is in compliance with its obligations under this Agreement, LEVERAGE shall, at its own expense, defend, indemnify and hold harmless USER from and against all actions, claims, and expenses (including reasonable attorney’s fees) brought against USER, its directors, employees and agents, to the extent such action is based on a claim that any aspect of LEVERAGE infringes any United States patents, copyrights, trademarks, licenses, or trade secrets, or any other right of third parties, provided that USER promptly notifies LEVERAGE in writing of such claim and, provided further, that LEVERAGE shall have the exclusive right to control such defense. In no event shall USER settle or attempt to settle any such claim, lawsuit or proceeding without LEVERAGE's prior written approval. The foregoing states the entire liability of LEVERAGE with respect to any claim that LEVERAGE violates the intellectual property right of any third party. To the extent a third-party claim arises out of USER’s use of LEVERAGE and not LEVERAGE itself, and/or to the extent a third-party claim arises from USER’s use of LEVERAGE in combination with information or material not provided to USER by LEVERAGE, LEVERAGE shall have no obligation to defend, indemnify, or hold USER harmless and USER shall instead defend, indemnify, and hold LEVERAGE harmless
8.3. Functionality. We warrant your reasonable satisfaction with the System as follows. Leverage will perform substantially as demonstrated to you, or as it worked at the time you established the site in question, subject to such improvements, bug fixes, and modifications as we may make from time to time for the benefit of users generally, or you. You will reasonably promptly notify us in writing of any claim of any defect in Leverage. If any part of Leverage is found defective such that it fails to function substantially as intended, we will remedy or repair, as soon as is reasonably practical, all demonstrable errors and malfunctions. The foregoing warranty is a limited warranty and it is the only warranty we make with respect to the System and any and all accompanying documentation. We make, and you receive, no other warranty, express or implied, regarding the performance of Leverage for you. Leverage expressly excludes and you hereby with all warranties of merchantability and fitness for a particular purpose, and all other implied warranties. We will have no liability for consequential, exemplary, or incidental damages, even if advised of the possibility of such damages. Damages for our breach of the above-stated warranty shall be limited to repairing the defect. We will be afforded the reasonable and adequate opportunity to repair any claimed nonconformity. This express warranty is in lieu of all liabilities and for damages arising out of or in connection with the delivery, use or performance of the System. The liability limitations provided herein extend to all our employees, officers, agents, contractors, subcontractors, owners, and affiliates, including but not limited to Gallo LLP, a California limited liability partnership, and Gallo LLC, a Puerto Rico limited liability company.
8.4. USER’s Representations, Warranties, and Indemnity Obligations
8.4.1. Legal and Ethical Use. You represent and warrant that you and your organization will use Leverage as intended, and in a manner that conforms to all applicable laws, rules, statutes, regulations, ethical codes, and standards. Without limitation, you agree to comply with all applicable copyright laws, all laws and ethical rules concerning attorney communications with clients and prospective clients, and all laws regarding the sending of unsolicited emails and text messages, including but not limited to the CAN-SPAM Act and the Telephone Consumer Protection Act.
8.4.2. Authority and Joint and Several Liability. You represent that you have full power and authority to enter into and perform this Agreement and that ability is not limited or restricted by any agreements or understanding with any other person; the execution, delivery and performance has been duly authorized by any and all necessary legal action; this Agreement constitutes your legal, valid and binding obligation. By accepting this agreement, you personally represent and warrant that you are authorized to bind yourself and your law firm to the terms thereof, and you accept joint and several liability under this Agreement with your law firm for your performance of this agreement, including but not limited to the timely payment of all charges due.
8.4.3. Indemnity and Defense. You hereby agree to indemnify, defend and hold harmless Leverage, its subsidiaries and affiliates, and their respective principals, owners, members, officers, directors, agents and employees, against any and all costs, claims, judgments, fines, settlements, liabilities, taxes, fees, expenses (including without limitation, attorneys' fees, expert fees and costs) or any other damage any of them suffer that results from or arises out of or is incurred in connection with: (a) your breach of any duty owed to any third party, including but not limited to any end-user of the System (e.g., one of your clients): (b) any breach or alleged breach of this Agreement (including but not limited to section 6.3 and its subsections) or the representations, warranties and covenants contained herein by USER, (c) any the right by you, including but not limited to your directors, partners, officers, agents, contractors, or employees: (d) all claims against us resulting from or relating to your business or law practice, or (e) your use of the service other than as provided in this Agreement, including but not limited to all third party claims arising from communications made through Leverage in violation of any law, regulation, or rule. This paragraph shall be construed to expand, and not to limit, any and all other defense and indemnity obligations you have or may in the future have arising in connection with this Agreement.
8.5.Procedure. Any party seeking indemnification or defense under this Agreement: (a) will give the indemnifying party prompt written notice of the claim; (b) will cooperate with the indemnifying party (at the indemnifying party's expense) in connection with the defense and settlement of the claims; (c) will permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party's prior written consent (which shall not be unreasonably withheld). Further, the indemnified party (at its own cost) may participate in the defense and settlement of the claim.
9. Confidentiality, Use, and Title to Intellectual Property
9.1. Business Information. In performing under this Agreement, you and we will or may become aware of business information relating to each other's software, services, research and development, inventions, processes, techniques, designs, pricing, and other technical and business information, as well as LEVERAGE and proprietary information developed in the course of developing and implementing LEVERAGE. All such information and all physical forms thereof, whether disclosed to the other party before or after this Agreement is signed, including the terms of this Agreement, is considered by both parties to be proprietary and confidential ("Proprietary Information"). Both during and after the term of this Agreement, each party agrees that, except as authorized in writing by the other party, it will: (i) preserve and protect the confidentiality of all Proprietary Information;; (ii) not disclose or otherwise disseminate to anyone, including each other's employees, except as necessary to perform in connection with this Agreement, the existence, source, content or substance of the Proprietary Information;; (iii) not use Proprietary Information in any way other than in furtherance of this Agreement; and (iv) not disclose, use or copy any information or materials received in confidence by each party during the course of this Agreement from a third party or about a third party. Each party shall have no liability to the other for the use or disclosure of any information that party can establish has: (a) become generally available to the public without breach of this Agreement; (b) been previously publicly released for disclosure by the owner of the information; (c) been given to either party by a third party who had no duty to maintain confidentiality; or (d) been independently developed before the date this Agreement is signed.
9.1.1. Reverse Engineering. Without limiting the foregoing or its generality, USER shall respect LEVERAGE’s proprietary, trade secret, copyright, and other intellectual property interests in LEVERAGE and its code, and shall not reverse engineer LEVERAGE or any portion of it.
9.1.2. Ownership of Improvements. LEVERAGE shall own all improvements to Leverage created in connection with USER’s use of LEVERAGE.
9.2. Client and Third-Party Information. Proprietary Information does not include client or other third-party information in Leverage, which shall instead be governed by your legal and ethical duties to your clients as attorneys arising under applicable law and ethical rules. You will conform your conduct to those laws and rules. We will conform our conduct to those laws and rules as a facilitating agent / support provider.
10. Security. LEVERAGE is designed to provide industry standard security, confidentiality, backups, and integrity of your data. Leverage is not HIPAA compliant.
11. Good Faith and Further Assurances. The parties agree that, with respect to all of their respective dealings under this Agreement, they shall act fairly and in good faith. They will execute all such other and further documents, and undertake all such tasks, as reasonably may be required or requested to effectuate the purposes of this Agreement.
12. Amendment. Subject to the implied duty of good faith and fair dealing, we may unilaterally modify these terms from time to time without notice. We may modify these terms in any way on 60 days written notice to you, given in any reasonable manner. No modification shall be effective against LEVERAGE unless in writing and signed by an authorized LEVERAGE officer.
13. Governing Law, Jurisdiction, and Venue. This Agreement shall be deemed entered into in San Francisco, California and will be governed by and interpreted in accordance with the substantive laws of the State of California, USA and applicable federal laws of the United States. The parties agree that any dispute arising under this Agreement shall be resolved exclusively in the state or federal courts within San Francisco, California, USA.
14. Personal Jurisdiction and System of Process. Each party agrees to submit to the personal jurisdiction of the state and federal courts in San Francisco, California, and to acknowledge and accept as adequate service of process the delivery of process by Federal Express—with a copy by email to the undersigned signatory at his or her customary business email address.
15. Construction of this Agreement. The headings in this Agreement are for convenience only and shall not be considered in determining its meaning. You are not necessarily required or expected to accept this Agreement without change. You may contact us at email@example.com to negotiate terms appropriate for you and your situation, which changes may result in an agreement amending these standard terms. You are a lawyer licensed to practice law and able to understand this agreement, its content, and its subtleties in potential ambiguities. You agree that, notwithstanding that this is or may be a contract of adhesion, it shall not be construed against either party but reasonably and plainly according to its terms.
16. Severability. If any provision of this Agreement is, becomes or is deemed invalid, illegal, or unenforceable under applicable law, such provision shall be severed to the extent necessary, and the remainder of this Agreement reformed to conform to applicable law and to effect the parties’ intentions to the limit of the law.
17. Waiver. No failure or delay by you or us to exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise of any right or remedy. No express waiver of, or sent to, any breach of or default in any term or condition of this agreement by any party hereto shall constitute a waiver of, or an assent to, any succeeding breach or default in the same or any other term or condition this Agreement.
18. Third-Party Beneficiaries. Your co-counsel in representing any client in your leverage system are intended third-party beneficiaries of this Agreement. No other persons, including but not limited to your clients, are intended third-party beneficiaries of this Agreement.
19. Changes to the Agreement or the Systems. We may modify, add, or delete portions of this Agreement at any time. If we make material changes to this Agreement will post or email you a notice. Minor revisions shall be effective without notice. Material revisions to this Agreement become effective upon notice to you unless otherwise provided. You agree to any modification of this Agreement by continuing to use the services after the effective date of any such modification.
20. Notices. All notices, demands or other communications shall be in writing and shall be valid if sent by email to the customary business email addresses of the persons notified, provided that at least two persons shall be notified for each party. For LEVERAGE, the email address shall be firstname.lastname@example.org. For USER, the email address shall be the address USER used to log in to the application.
21. Binding Effect. This Agreement shall bind, and inure to the benefit of, the parties’ successors and assigns.
22. Injunctive Relief. The parties hereto recognize and agree that in the event of a material breach or threatened breach of its obligations under this Agreement, irreparable injury to the other could result and money damages alone would not adequately compensate the party, and therefore agrees that, in addition to all other remedies available to the party at law, in equity, by agreement or otherwise, the party shall be entitled to seek specific performance or other injunctive or equitable relief for the enforcement of any such obligation.
23. Attorneys’ Fees and Costs. In any litigation or arbitration between the parties arising in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees (including the value of their own time at their customary rates), and reasonably incurred costs.
24. Independent Contractor Status. Neither party shall have, nor shall represent that it has, any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party's name. Nothing in this Agreement shall be construed as creating any partnership, joint venture, or the relationships of employer/employee, franchisor/franchisee, or principal/agent between the parties. We are performing services for you as an independent contractor.
25. Complete Agreement. This Agreement is the complete agreement of the parties with respect to its subject matter. It supersedes any and all prior discussions, representations, statements, negotiations, and agreements.
26. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, storm, fire, flood, acts of God, acts of war or terrorism, or interruptions of transportation or communication.